BOARD OF PROFESSIONAL RESPONSIBILITY WYOMING STATE BAR v. METLER

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Supreme Court of Wyoming.

BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR, Petitioner, v. Jeffery C. METLER, Respondent.

No. D–12–0003.

Decided: February 23, 2012

ORDER OF PUBLIC CENSURE

[¶ 1] This matter came before the Court upon a “Report and Recommendation for Public Censure,” filed herein January 30, 2012 by the Board of Professional Responsibility for the Wyoming State Bar. The Court, after a careful review of the Board of Professional Responsibility's Report and Recommendation and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Jeffery C. Metier should be publicly censured for his conduct, which is described in the attached Report and Recommendation. It is, therefore,

[¶ 2] ADJUDGED AND ORDERED that the Board of Professional Responsibility's Report and Recommendation for Public Censure, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

[¶ 3] ADJUDGED AND ORDERED that Jeffery C. Metier shall receive a public censure for his conduct, and he shall be publicly censured in a manner consistent with the recommended censure contained in the Report and Recommendation for Public; and it is further

[¶ 4] ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Mr. Metier shall reimburse the Wyoming State Bar the amount of $50.00, representing the administrative costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Mr. Metier shall pay the total amount of $550.00 to the Clerk of the Board of Professional Responsibility on or before March 23, 2012; and it is further

[¶ 5] ORDERED that the Clerk of this Court shall docket this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, as a matter coming regularly before this Court as a public record; and it is further

[¶ 6] ORDERED that, pursuant to Section 4(c) of the Disciplinary Code for the Wyoming State Bar, this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

[¶ 7] ORDERED that the Clerk of this Court cause a copy of the Order of Public Censure to be served upon Respondent Jeffery C. Metier.

[¶ 8] DATED this 23rd day of February, 2012.

BEFORE THE SUPREME COURT STATE OF WYOMING

In the matter of JEFFERY C. METLER, WSB No. 7–4664, Respondent .

WSB No.2011–174

REPORT AND RECOMMENDATION FOR PUBLIC CENSURE

The Board of Professional Responsibility makes the following Report and Recommendation, with its findings of fact, conclusions of law, and recommendation to the Supreme Court of Wyoming:

FINDINGS OF FACT

1. Respondent a licensed attorney in the State of Wyoming, Bar # 7–4664. Respondent has been licensed in Wyoming since 2010, and in Utah since 2004. Respondent's office is located in Provo, Utah

2. Following Respondent's admission to the Wyoming State Bar, his advertising agency purchased several ads in the Sweetwater County telephone directory, copies of which are attached hereto. Respondent approved the ads prior to their publication.

3. Respondent has agreed that the ads violate Rule 7.1(b) of the Wyoming Rules of Professional Conduct. All three ads are missing Respondent's office address, in violation of Rule 7.2(e). One of the ads is missing the disclaimer required by Rule 7.2(g). The other two ads have the required disclaimer, but in type size smaller than the smallest type size appearing in the ad, in violation of Rule 7.2(g). Finally, the ads violate Rule 7.4(d) with respect to claims of certification.

4. Respondent concedes that he negligently relied upon his advertising agency to comply with the Wyoming Rules of Professional Conduct in the placement of these ads. When the violations were brought to Respondent's attention by Bar Counsel, Respondent-fired his advertising agency and has taken steps to see that neither these ads nor any others containing violations of the rules will be published.

5. Respondent is extremely embarrassed by this matter and has apologized for his actions. Respondent has promised to take steps in his practice to assure that nothing like this ever happens again.

6. Respondent has agreed to a public censure in this matter, and has stipulated to the issuance of a press release with the following language:

Utah attorney Jeffery C. Metier received a formal public censure by order of the Wyoming Supreme Court on _, 2012. Mr. Metier purchased several advertisements in the Sweetwater County telephone directory which indicated that he was “recently seen in Forbes magazine as THE leading personal injury lawyer in the Central United States.” The ads included an emblem indicating that Mr. Metier was “LEADING PROVIDERS—2011 CERTIFIED—CENTRAL U.S.”

The Wyoming Rules of Professional Conduct regulate the conduct of Wyoming attorneys and include specific rules applicable to lawyer advertising. Mr. Metier violated Rule 7.2(b), which prohibits lawyers from making a communication which is likely to create an unjustified expectation about results the lawyer can achieve. Mr. Metier also violated Rule 7.4(d), which prohibits a lawyer from claiming to be certified as a specialist in a particular field of law unless specific requirements have been met. Two of the ads violated the type size requirement for the disclaimer required by Rule 7.2(g), and the third was missing the disclaimer altogether. None of the ads contained Mr. Metler's office address, as required by Rule 7.2(e).

Mr. Metier stipulated to these facts and consented to this discipline. The Board of Professional Responsibility approved the stipulation, recommending that the Wyoming Supreme Court publicly censure Mr. Metier. After reviewing the report and recommendation, the Wyoming Supreme Court entered its order publicly censuring Mr. Metier and requiring him to pay the costs of the Wyoming State Bar for prosecuting this matter.

CONCLUSIONS OF LAW

7. Standard 2.5 of the ABA Standards for Imposing Lawyer Sanctions states, “Reprimand, also known as censure or public censure, is a form of public discipline which declares the conduct of the lawyer improper, but does not limit the lawyer's right to practice.” The commentary to Standard 2.5 discusses the proper circumstances in which to impose a public censure as well as the rationale behind this form of discipline:

Publicity enhances the effect of the discipline and emphasizes the concern of the court with all lawyer misconduct, not only serious ethical violations. A reprimand is appropriate in cases where the lawyer's conduct, although violating ethical standards, is not serious enough to warrant suspension or disbarment. * * * A reprimand serves the useful purpose of identifying lawyers who have violated ethical standards, and, if accompanied by a published opinion, educates members of the bar as to these standards.

8. Standard 3.0 provides, “In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors:”

(a) the duty violated;

(b) the lawyer's mental state; and

(c) the actual or potential injury caused by the lawyer's misconduct; and

(d) the existence of aggravating or mitigating factors.

9. Misconduct of the sort engaged in by Respondent, which essentially involves misleading communications about the lawyer or the lawyer's services, is addressed in Section 7.0, “Violations of Duties Owed to the Profession.” Subsection 7.3 provides, “Reprimand [i.e., public censure] is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system.”

10. Section 9.1 of the ABA Standards for Imposing Lawyer Sanctions provides for consideration of aggravating and mitigating circumstances in deciding on an appropriate sanction. Section 9.21 defines aggravating circumstances as “any consideration, or factors that may justify an increase in the degree of discipline to be imposed.” Section 9.31 defines mitigating circumstances as “any considerations, or factors that may justify a reduction in the degree of discipline to be imposed.”

11. The applicable aggravating factors are:

i. Section 9.22(d)-multiple offenses. Several ads were placed, all with essentially the same defects, and violated multiple provisions of the Wyoming Rules of Professional Conduct.

ii. Section 9.22(i)-substantial experience in the practice of law. Respondent was first admitted to practice in Utah in 2004.

12. Applicable mitigating factors are:

i. Section 9.32(a)-absence of prior disciplinary record;

ii. Section 9.32(b)-absence of dishonest or selfish motive;

iii. Section 9.32(d)-timely good faith effort to rectify consequences of misconduct;

iv. Section 9.32(e)-full and free disclosure to Bar Counsel and cooperative attitude toward proceedings; and

v. Section 9.32(l)-remorse.

RECOMMENDATION

As an appropriate sanction for his violations of Rules 7.1(b), 7.2(e), 7.2(g) and 7.4(d) of the Wyoming Rules of Professional Conduct, the Board of Professional Responsibility recommends that Respondent: (1) receive a public censure; and (2) be ordered to pay the administrative fee in the amount of $500.00 and administrative costs of $50.00 within ten days of approval of the report and recommendation by the Wyoming Supreme Court.

MARILYN S. KITE, Chief Justice.

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